457.5 

.J71 

1865 


DUKE 
UNIVERSITY 


LIBRARY 


AN  ARGUMENT 

TO  ESTABLISH  THE  ILLEGALITY  OF 

MILITARY  COMMISSIONS 

I  X    T  H  E 

UNITED  STATES, 

And  Especially  of  the  One  Organized  for  the  Trial  of 
THE  Parties  Charged  ^th 

Conspiring  to  Assassinate  the  Late  President, 

A-jidOtliers, 

PRESENTED    TO    THAT  COMMISSION, 

On  Monday^  the  19th  of  Ju7ie,  1865^ 

AND    PREPAKED  BY 

E  E  V  E  R  D  Y  JOHNSON, 


One  0/  tJie  Counsel  of  3Irs.  Surratt. 


Baltimore  Printed  by  John  Murphy  &  Co. 

Publishers,  Booksellers,  Printers  and  Stationers, 

182  Baltimoke  Street. 

1  8  6  5. 


Digitized  by  the  Internet  Archive 
in  2015 


https://archive.org/details/argumenttoestabl01john 


ARGUMENT. 


Mr.  President  and  Gentlemen  of  the  Commission  : 

Has  the  Commission  jurisdiction  of  the  cases  before  it,  is  the  question 
which  I  propose  to  discuss.  That  question,  in  all  courts,  civil,  criminal, 
and  military,  nmst  be  considered  and  answered  affirmatively  before  judg- 
ment can  be  pronounced.  And  it  must  be  ansvvered  correctly,  or  the  judg- 
ment pronounced  is  void.  Ever  an  interesting  and  vital  inquiry,  it  is  of 
engrossing  interest  and  of  awful  importance  when  error  may  lead  to  the 
unauthorized  taking  of  human  life.  In  such  a  case,  the  court  called  upon 
to  render,  and  the  officer  who  is  to  approve  its  judgment  and  have  it  exe- 
cuted, have  a  concern  peculiar  to  themselves.  As  to  each,  a  responsibility 
is  involved  which,  however  conscientiously  and  firmly  met,  is  calculated  and 
cannot  fail  to  awaken  great  solicitude  and  induce  the  most  mature  conside- 
ration. The  nature  of  the  duty  is  such  that  even  honest  error  affords  no 
impunity.  The  legal  personal  consequences,  even  in  a  case  of  honest, 
mistaken  judgment,  cannot  be  avoided.  That  this  is  no  exaggeration, 
the  Commission  will,  I  think,  be  satisfied  before  I  shall  have  concluded. 
I  refer  to  it  now,  and  shall  again,  with  no  view  to  shake  your  firmness. 
Such  an  attempt  would  be  alike  discourteous  and  unprofitable.  Every 
member  comprising  the  Commission  will,  I  am  sure,  meet  all  the  responsi- 
bility that  belongs  to  it  as  becomes  gentlemen  and  soldiers.  I  therefore 
repeat  that  my  sole  object  in  adverting  to  it  is  to  obtain  a  well  considered 
and  matured  judgment.  So  far  the  question  of  jurisdiction  has  not  been 
discussed.  The  pleas  which  specially  present  it,  as  soon  as  filed,  were 
overruled.  But  that  will  not,  because  properly  it  should  not,  prevent 
your  considering  it  with  the  deliberation  that  its  grave  nature  demands. 
And  it  is  for  you  to  decide  it,  and  at  this  time  for  you  alone.  The  com- 
mission you  are  acting  under  of  itself  does  not  and  could  not  decide  it. 
If  unauthorized  it  is  a  mere  nullity— the  usurpation  of  a  power  not  vested 
in  the  Executive,  and  conferring  no  authority  whatever  upon  you.  To 

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hold  otherwise  would  be  to  make  the  Executive  the  exclusive  and  conclu- 
sive judge  of  its  own  powers,  and  that  would  be  to  make  that  department 
omnipotent.  The  powers  of  the  President  under  the  Constitution  are 
great,  and  amply  sufficient  to  give  all  needed  efficiency  to  the  office.  The 
convention  that  formed  the' Constitution,  and  the  people  who  adopted  it, 
considered  those  powers  sufficient,  and  granted  no  others.  In  the  minds 
of  both  (and  subsequent  history  has  served  to  strengthen  the  impression) 
danger  to  liberty  was  more  to  be  dreaded  from  the  Executive  than  from 
any  other  department  of  the  Government.  So  far,  therefore,  from  mean- 
ing to  extend  its  powers  beyond  what  was  deemed  necessary  to  the  whole- 
some operation  of  the  Government,  they  were  studious  to  place  them 
beyond  the  reach  of  abuse.  With  this  view,  before  entering  on  the  exe- 
cution of  his  office,"  the  President  is  required  to  take  an  oath  "faithfully" 
to  discharge  its  duties,  and  to  the  best  of  his  "  ability  preserve,  protect, 
and  defend  the  Constitution  of  the  United  States."  He  is  also  liable  to 
"  be  removed  from  office  on  impeachment  for  and  conviction  of  treason, 
bribery,  or  other  high  crimes  and  misdemeanors."  If  he  violates  the 
Constitution  ;  if  he  fails  to  preserve  it ;  and,  above  all,  if  he  usurps 
powers  not  granted,  he  is  false  to  his  official  oath,  and  liable  to  be  in- 
dicted and  convicted,  and  to  be  impeached.  For  such  an  offence,  his  re- 
moval from  office  is  the  necessary  consequence.  In  such  a  contingency, 
"  he  shall  be  removed"  is  the  command  of  the  Constitution.  What 
stronger  evidence  could  there  be  that  his  powers,  all  of  them,  in  peace 
and  in  war,  are  only  such  as  the  Constitution  confers  ?  But  if  this  was 
not  evident  from  the  instrument  itself,  the  character  of  the  men  who  com- 
posed the  Convention,  and  the  spirit  of  the  American  people  at  that 
period,  would  prove  it.  Hatred  of  a  monarchy,  made  the  more  intense 
by  the  conduct  of  the  monarch  from  whose  government  they  had  recently 
separated,  and  a  deep-seated  love  of  constitutional  liberty,  made  the  more 
keen  and  active  by  the  sacrifices  which  had  illustrated  their  revolutionary 
career,  constituted  them  a  people  who  could  never  be  induced  to  delegate 
any  executive  authority  not  so  carefully  restricted  and  guarded  as  to  ren- 
der its  abuse  or  usurpation  almost  impossible.  If  these  observations  are 
well  founded — and  I  suppose  they  will  not  be  denied — it  follows  that  an 
executive  act  beyond  executive  authority  can  furnish  no  defence  against 
the  legal  consequences  of  what  is  done  under  it.  I  have  said  that  the 
question  of  juricdiction  is  ever  open.  It  may  be  raised  by  counsel  at  any 
stage  of  the  trial,  and  if  it  is  not,  the  Court  not  only  may,  but  is  bound 


5 


to  notice  it.  Unless  jurisdiction  then  exists,  the  authority  to  try  does  not 
exist,  and  whatever  is  done  is  "  cor^am  nov  judice,''^  and  utterly  void. 
This  doctrine  is  as  applicable  to  military  as  to  other  courts. 

O'Brien  tells  us  that  the  question  may  be  raised  by  demurrer  if  the 
facts  charged  do  not  constitute  an  offence,  or  if  they  do,  not  an  offence 
cognizable  by  a  military  court,  or  that  it  may  be  raised  by  a  special  plea, 
or  under  the  general  one  of  not  guilty. — 0-Brien,  248. 

DeHart  says:  The  court  "is  the  judge  of  its  own  competency  at  any 
stage  of  its  proceedings,  and  is  bound  to  notice  questions  of  jurisdiction 
whenever  raised.-' — DeHart  III. 

The  question  then  being  always  open,  and  its  proper  decision  essential 
to  the  validity  of  its  judgment,  the  Commission  must  decide  before  pro- 
nouncing such  judgment  whether  it  has  jurisdiction  over  these  parties  and 
the  crimes  imputed  to  them.  That  a  tribunal  like  this  has  no  jurisdiction 
over  other  than  military  offences,  is  believed  to  be  self-evident.  That 
offences  defined  and  punished  by  the  civil  law,  and  whose  trial  is  provided  for 
by  the  same  law,  are  not  the  subjects  of  military  jurisdiction,  is  of  course 
true.  A  military,  as  contradistinguished  from  a  civil  offence,  must  there- 
fore be  made  to  appear,  and  when  it  is,  it  must  also  appear  that  the 
military  law  provides  for  its  trial  and  punishment  by  a  military  tribunal. 
If  that  law  does  not  furnish  a  mode  of  trial,  or  affix  a  punishment,  the 
case  is  unprovided  for,  and,  as  far  as  the  military  power  is  concerned,  is 
to  go  unpunished.  Bat  as  either  the  civil,  common,  or  statute  law 
embraces  every  species  of  offence  that  the  United  States,  or  the  States 
have  deemed  it  necessary  to  punish,  in  all  such  cases  the  civil  courts  are 
clothed  with  every  necessary  jurisdiction.  In  a  military  court,  if  the 
charge  does  not  state  a  ''crime  provided  for  generally  or  specifically  by 
any  of  the  articles  of  war,"  the  prisoner  mast  be  discharged.  {(yBrien, 
p.  235.)  Xor  is  it  sufficient  that  the  charge  is  of  a  crime- known  to  the 
military  law.  The  offender,  when  he  commits  it,  must  be  subject  to  such 
law,  or  he  is  not  subject  to  military  jurisdiction.  The  general  law  has 
''supreme  and  undisputed  jurisdiction  over  all.  The  military  law  puts 
forth  no  such  pretensions ;  it  aims  solely  to  enforce  on  the  soldier  the 
additional  duties  he  has  assumed.  It  constitutes  tribunals  for  the  trial  of 
breaches  of  military  duty  only.''  {O'Brien,  26,  27.)  "The  one  code 
(the  civil)  embraces  all  citizens,  whether  soldiers  or  not ;  the  other  (the 
military)  has  no  jurisdiction  over  any  citizen  as  such."  Ibid. 


The  provisions  of  the  Constitution  clearly  maintain  the  same  doctrine. 
The  Executive  has  no  authority  "to  declare  war,  to  raise  and  support 
armies,  to  provide  and  maintain  a  navy/^  or  to  make    rules  for  the  gov- 
ernment and  regulation  "  of  either  force.    These  powers  are  exclusively 
in  Congress.    An  army  cannot  be  raised  or  have  law  for  its  government 
and  regulation  except  as  Congi-ess  shall  provide.    This  power  of  Con- 
gress to  govern  and  regulate  the  army  and  navy,  was  granted  by  the  con- 
vention without  objection.    In  England,  the  King,  as  the  generalissimo 
of  the  whole  kingdom,  has  this  sole  power,  though  Parliament  has  fre- 
quently interposed  and  regulated  for  itself.    But  with  us^  it  was  thought 
safest  to  give  the  entire  power  to  Congress,    since  otherwise  summary 
and  severe  punishments  might  be  inflicted  at  the  mere  will  of  the  Execu- 
tive."   (o  Storifs  Com.,  sect.  1192.)    No  member  of  the  Convention,  or 
any  commentator  on  the  Constitution  since,  has  intimated  that  even  this 
Congressional  power  could  be  applied  to  citizens  not  belonging  to  the 
army  or  navy.    In  respect,  too,  to  the  latter  class,  the  power  was  con- 
ferred exclusively  on  Congress  to  prevent  that  class  being  made  the  object 
of  abuse  by  the  Executive — to  guard  them  especially  from  "  summary  and 
severe  punishments"  inflicted  by  mere  Executive  will.    The  existence  of 
such  a  power  being  vital  to  discipline,  it  was  necessary  to  pro-vide  for  it. 
But  no  member  suggested  that  it  should  be  or  could  be  made  to  apply  to 
citizens  not  in  the  military  or  naval  service,  or  be  given  to  any  other 
department,  in  whole  or  in  part,  than  Congress.    Citizens  not  belonging 
to  the  army  or  navy  were  not  made  liable  to  mdlitary  law,  or  under  any 
circumstances  to  be  deprived  of  any  of  the  guaranties  of  personal  liberty 
provided  by  the  Co-nstitution.     Independent  of  the  consideration  that 
the  very  nature  of  the  Government  is  inconsistent  with  such  a  pretension, 
the  power  is  conferred  upon  Congress  in  terms  that  exclude  all  who  do 
not  belong  to  "the  land  and  naval  forces."    It  is  a  rule  of  interpretation 
coeval  with  its  existence,  that  the  Government,  in  no  department  of  it, 
possesses  powers  not  granted  by  express  delegation  or  necessarily  to  be 
implied  from  those  that  are  granted.    This  would  be  the  rule  incident  to 
the  very  nature  of  the  Constitution ;  but  to  place  it  beyond  doubt,  and  to 
make  it  an  imperative  rule,  the  10th  amendn>ent  declares  that  "the  powers 
not  delegated  to  the  United  States  by  the  Constitution,  nor  prohibited  by 
it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people." 
The  power  given  to  Congress,  "is  to  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces."    No  artifice  of  ingenuity  can 


7 


make  these  words  include  those  who  do  not  belong  to  the  army  and  navy; 
and  they  are  therefore  to  be  construed  to  exclude  all  others,  as  if  negative 
words  to  that  effect  had  been  added.  And  this  is  not  only  the  obvious 
meaning  of  the  terms,  considered  by  themselves,  but  is  demonstrable  from 
other  provisions  of  the  Constitution.  So  jealous  were  our  ancestors  of 
ungranted  power,  and  so  vigilant  to  protect  the  citizen  against  it,  that 
they  were  unwilling  to  leave  him  to  the  safe  guards  which  a  proper  con- 
struction of  the  Constitution,  as  orignally  adopted,  furnished.  In  this 
they  resolved  that  nothing  should  be  left  in  doubt.  They  determined, 
therefore,  not  only  to  guard  him  against  executive  and  judicial,  but 
against  Congressional  abuse.  With  that  view,  they  adopted  the  fifth 
constitutional  amendment,  which  declares  that  "no  person  shall  be  held  to 
answer  for  a  capital  or  otherwise  infamous  crime,  unless  on  a  presentment 
or  indictment  of  a  grand  jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia  when  in  active  service  in  time  of  xcar  or 
public  danger. This  exception  is  designed,  to  leave  in  force,  not  to 
enlarge  the  power  vested  in  Congress  by  the  original  Constitution,  ''to 
make  rules  for  the  government  and  regulation  of  the  land  and  naval 
forces."  "The  land  or  naval  forces"  are  the  terms  used  in  both,  have 
the  same  meaning,  and  until  lately,  have  been  supposed  by  every  commen- 
tator and  judge,  to  exclude  from  military  jurisdiction  offences  committed 
by  citizens  not  belonging  to  such  forces.  Kent,  in  a  note  to  his  1  Corns., 
p.  341,  states,  and  with  accuracy,  that  "military  and  naval  crimes,  and 
offences  committed  while  the  party  is  attached  to  and  under  the  immediate 
authority  of  the  army  and  navy  of  the  United  States  and  in  actual  service, 
are  not  cognizable  under  the  common  law  jurisdiction  of  the  courts  of  the 
United  States."  According  to  this  great  authority,  every  other  class  of 
persons  and  every  other  species  of  offence,  are  witliin  the  jurisdiction  of 
the  civil  courts,  and  entitled  to  the  protection  of  the  proceeding  by  pre- 
sentment or  indictment,  and  a  public  trial  in  such  a  court.  If  the  consti- 
tutional amendment  has  not  that  effect,  if  it  does  not  secure  that  protection 
to  all  who  do  not  belong  to  the  army  or  navy,  then  the  provisions  in  the 
sixth  amendment  are  equally  inoperative.  They,  "  m  all  criminal  prose- 
cutions," give  the  accused  a  right  to  a  speedy  and  public  trial ;  a  right  to 
be  informed  of  the  nature  and  cause  of  the  accusation,  to  be  confronted 
with  the  witnesses  against  him,  to  compulsory  process  for  his  witnesses, 
and  the  assistance  of  counsel.  The  exception  in  the  5th  amendment  of 
cases  arising  in  the  land  or  naval  forces  applies  by  necessary  implication, 


at  least  in  part,  to  this.  To  construe  this  as  not  containing  the  exception 
would  defeat  the  purpose  of  the  exception  ;  for  the  provisions  of  the  6th 
amendment,  unless  they  are  subject  to  the  exceptions  of  the  fith,  would 
be  inconsistent  with  the  5th.  The  6th  is  therefore  to  be  construed  as  if 
it  in  words  contained  the  exception.  It  is  submitted  that  this  is  evident. 
The  consequence  is,  that  if  the  exception  can  be  made  to  include  those 
who,  in  the  language  of  Kent,  are  not,  when  the  offence  was  committed, 
"attached  to  and  under  the  immediate  authority  of  the  army  or  navy,  and 
in  actual  service,"  the  securities  designed  for  other  citizens  by  the  6th 
article  are  wholly  nugatory.  If  a  military  commission,  created  by  the 
mere  authority  of  the  President,  can  deprive  a  citizen  of  the  benefit  of  the 
guaranties  secured  by  the  5th  amendment,  it  can  deprive  him  of  those 
secured  by  the  6th.  It  may  deny  him  the  right  to  a  "  speedy  and  public 
trial,"  information  of  the  nature  and  cause  of  the  accusation,"  of  the 
right  "to  be  confronted  with  the  witnesses  against  him,"  of  "compulsory 
process  for  his  witnesses,"  and  of  "the  assistance  of  counsel  for  his 
defence."  That  this  can  be  done  no  one  has  as  yet  maintained;  no 
opinion,  however  latitudinarian,  of  executive  power,  of  the  effect  of  public 
necessity,  in  war  or  in  peace,  to  enlarge  its  sphere,  and  authorize  a  dis- 
regard of  its  limitations  ;  no  one,  however  convinced  he  may  be  of  the 
policy  of  protecting  accusing  witnesses  from  a  public  examination,  under 
the  idea  that  their  testimony  cannot  otherwise  be  obtained,  and  that  crime 
may  consequently  go  unpunished,  has  to  this  time  been  found  to  go  to 
that  extent.  Certainly,  no  writer  has  ever  maintained  such  a  doctrine. 
Argument  to  refute  it,  is  unnecessary.  It  refutes  itself.  For,  if  sound, 
the  6th  amendment,  which  our  fathers  thought  so  vital  to  individual 
liberty  when  assailed  by  governmental  prosecution,  is  but  a  dead  letter, 
totally  inefficient  for  its  purpose  whenever  the  Government  shall  deem  it 
proper  to  try  a  citizen  by  a  military  commission.  Against  such  a  doctrine 
the  very  instincts  of  freemen  revolt.  It  has  no  foundation  but  in  the 
principle  of  unrestrained,  tyrannic  power,  and  passive  obedience.  If  it  be 
well  founded,  then  are  we  indeed  a  nation  of  slaves,  and  not  of  freemen. 
If  the  Executive  can  legally  decide  whether  a  citizen  is  to  enjoy  the 
guaranties  of  liberty  afforded  by  the  Constitution,  what  are  we  but  slaves  ? 
If  the  President,  or  any  of  his  subordinates,  upon  any  pretence  whatever, 
can  deprive  a  citizen  of  such  guaranties,  liberty  with  us,  however  loved,  is 
not  enjoyed.  But  the  Constitution  is  not  so  fatally  defective.  It  is 
subject  to  no  such  reproach.    In  war  and  in  peace,  it  is  equally  potential 


9 


for  the  promotion  of  the  general  welfare,  and  as  involved  in  and  necessary 
to  such  welfare,  for  the  protection  of  the  individual  citizen.  Certainly, 
until  this  rebellion,  this  has  been  the  proud  and  cherished  conviction  of 
the  country.  And  it  is  to  this  conviction  and  the  assurance  that  it  could 
never  be  shaken  that  our  past  prosperity  is  to  be  referred.  God  forbid 
that  mere  power,  dependent  for  its  exercise  on  Executive  will,  (a  condition 
destructive  of  political  and  social  happiness,)  shall  ever  be  substituted  in 
its  place.  Should  that  unfortunately  ever  occur,  unless  it  was  soon 
corrected  by  the  authority  of  the  people,  the  objects  of  our  Revolutionary 
struggle,  the  sacrifices  of  our  ancestors,  and  the  design  of  the  Constitution 
will  all  have  been  in  vain. 

I  proceed  now  to  examine  with  somewhat  of  particularity  the  grounds 
on  which  I  am  informed  your  jurisdiction  is  maintained. 

•    1st.  That  it  is  an  incident  of  the  war  power. 

I.  That  power,  whatever  be  its  extent,  is  exclusively  in  Congress.  War 
can  only  be  declared  by  that  body,  "With  its  origin  the  President  has  no 
concern  whatever.  Armies,  when  necessary,  can  only  be  raised  by  the 
same  body,  Not  a  soldier,  without  its  authority,  can  be  brought  into 
service  by  the  Executive.  He  is  as  impotent  to  that  end  as  a  private  citi- 
zen. And  armies,  too,  when  raised  by  Congressional  authority,  can  only 
be  governed  and  regulated  by  "rules"  prescribed  by  the  same  authority. 
The  Executive  possesses  no  povv-er  over  the  soldier  except  such  as  Con- 
gress may,  by  legislation,  confer  upon  him.  If,  then,  it  was  true  that  the 
creation  of  a  military  commission  like  the  present  is  incidental  to  the  war 
power,  it  must  be  authorized  by  the  department  to  which  that  power  be- 
longs, and  not  by  the  Executive,  to  v^hom  no  portion  of  it  belongs.  And 
if  it  be  said  to  be  involved  in  the  power  "to  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval  forces,"  the  result  is  the  same. 
It  must  be  done  by  Congress,  to  whom  that  power  also  exclusively  be- 
longs, and  not  by  the  Executive.  Has  Congress,  then,  under  either 
power,  authorized  such  a  commission  as  this  to  try  such  cases  as  these  ? 
It  is  confidently  asserted  that  it  has  not.  If  it  has,  let  the  statute  be 
produced.  It  is  certainly  not  done  by  that  of  the  10th  of  April,  1806, 
"  establishing  articles  for  the  government  of  the  armies  of  the  United 
States."  Xo  military  courts  are  there  mentioned  or  provided  for  but 
courts-martial  and  courts  of  inquiry.    And  their  mode  of  appointment 


10 


and  organization,  and  of  proceeding,  and  the  authority  vested  in  them 
are  also  prescribed.  Military  comrnissions  are  not  only  not  authorized, 
but  are  not  even  alluded  to.  And,  consequently,  the  parties,  whoever 
these  may  be,  who,  under  that  act,  can  be  tried  by  courts-martial  or 
courts  of  inquiry,  are  not  made  subject  to  trial  by  a  military  commission. 
'Nov  is  such  a  tribunal  mentioned  in  any  prior  statute,  or  in  any  subse- 
quent one,  until  those  of  the  llih  of  July,  1862,  and  of  the  3d  of  March, 
1863.  In  the  5th  section  of  the  first,  the  records  of  "military  commis- 
sions are  to  be  returned  for  revision  to  the  Judge  Advocate  General," 
whose  appointment  it  also  provides  for.  But  how  such  commissions  are 
to  be  constituted,  what  powers  they  are  to  have,  how  their  proceedings 
are  to  be  conducted,  or  what  cases  and  parties  they  are  to  try,  is  not  pro- 
vided for.  In  the  38th  section  of  the  second,  they  are  mentioned  as  com- 
petent to  try  persons  "lurking  or  acting  as  spies."  The  same  absence  in 
the  particulars  stated  in  respect  to  the  first  are  true  of  this.  And  as 
regards  this  act  of  1863,  this  reflection  forcibly  presents  itself.  If  mili- 
tary commissions  can  be  created,  and  from  their  very  nature  possess  juris- 
diction to  try  all  alleged  military  offences,  (the  ground  on  which  your 
jurisdiction,  it  is  said,  in  part  rests,)  why  was  it  necessary  to  give  them 
the  power,  by  express  words,  to  try  persons  "lurking  or  acting  as  spies?" 
The  military  character  of  such  an  offence  could  not  have  been  doubted. 
What  reason,  then,  can  be  suggestd  for  conferring  the  power  by  express 
language  than  that  without  it  it  would  not  be  possessed  ?  Before  these 
statutes  a  commission,  called  a  military  commission,  had  been  issued  by 
the  Executive  to  Messrs.  Davis,  Holt,  and  Campbell,  to  examine  into  cer- 
tain military  claims  against  the  Western  Department,  and  Congress,  by 
its  resolution  of  the  11th  of  March,  1862,  (No.  18,)  provided  for  the  pay- 
ment of  its  awards.  Against  a  commission  of  that  character  no  objection 
can  be  made.  It  is  but  ancilliary  to  the  auditing  of  demands  upon  the 
Government,  and  in  no  way  interferes  with  any  constitutional  right  of  the 
citizen.  But  until  this  rebellion  a  military  commission  like  the  present, 
organized  in  a  loyal  State  or  Territory  where  the  courts  are  open  and 
their  proceedings  unobstructed,  clothed  with  the  jurisdiction  attempted  to 
be  conferred  upon  you — a  jurisdiction  involving  not  only  the  liberty,  but 
the  lives  of  the  parties  on  trial— it  is  confidently  stated,  is  not  to  be  found 
sanctioned,  or  the  most  remotely  recognized,  or  even  alluded  to,  by  any 
writer  on  military  law  in  England  or  the  "United  States,  or  in  any  legisla- 
tion of  either  country.    It  has  its  origin  in  the  rebellion,  and  like  the 


11 


dangerous  heresy  of  secession,  out  of  which  that  sprung,  nothing  is  more 
certain  in  my  opinion  than  that,  however  pure  the  motives  of  its  origin,  it 
will  be  considered,  as  it  is,  an  almost  equally  dangerous  heresy  to  consti- 
tutional liberty,  and  the  rebellion  ended,  perish  with  the  other,  thea  and 
forever.  But  to  proceed;  such  commissions  were  authorized  by  Lieu- 
tenant General  Scott  in  his  Mexican  campaign.  When  he  obtained  pos- 
session of  the  City  of  Mexico,  he  on  the  17th  of  September,  1847,  repub- 
lished, with  additions,  his  order  of  the  19th  of  February  preceding,  declar- 
ing martial  law.  By  this  order,  he  authorized  the  trial  of  certain  offences 
by  military  commissions,  regulated  their  proceedings,  and  limited  the  pun- 
ishments they  might  inflict.  From  their  jurisdiction,  however,  he  excepts 
cases  "clearly  cognizable  by  court-martial,"  and  in  words  limits  the  cases 
to  be  tried  to  such  as  are  (I  quote)  not  provided  for  in  tiie  act  of  Con- 
gress establishing  rules  and  articles  for  the  government  of  the  armies  of 
the  United  States,"'  of  the  10th  of  Aprils  1806.  The  second  clause  of 
the  order  mentions,  among  other  offences  to  be  so  tried,  "  assassinatioD, 
murder,  poisoning;""  and  in  the  fourth  (correctly,  as  I  submit,  with  all 
respect  for  a  contrary  opinion,)  he  states  that  "the  rules  and  articles  of 
war''  do  not  provide  for  the  punishment  of  any  one  of  the  designated 
offences,  "'even  when  committed  by  individuals  of  the  army  upon  the  per- 
sons or  property  of  other  individuals  of  the  same,  except  in  the  very 
restricted  case  in  the  9th  of  the  articles.""  The  authority,  too,  for  even 
this  restricted  commission — Scott — not  more  eminent  as  soldier  than 
civilian — placed  entirely  upon  the  ground  that  the  named  offences,  if  com- 
mitted in  a  foreign  country  by  American  troops,  could  not  be  punished 
under  any  law  of  the  United  States  then  in  force.  "'  The  Constitution  of 
the  United  States  and  the  rules  and  articles  of  war,"'  he  said,  and  said 
correctly,  provided  no  court  for  their  trial  or  punishment,  "  no  matter  by 
whom,  or  on  whom"'  committed. — ScoWs  Autohiography,  392. 

And  he  further  tells  us  that  even  this  order,  so  limited  and  so  called  for 
by  the  greatest  public  necessity,  when  handed  to  the  then  Secretary  of 
War  (Mr.  Marcy)  "for  his  approval,"  "'  a  startle  at  the  title  (martial  law 
order)  was  the  only  comment  he  then,  or  ever,  made  on  the  subject,*'  and 
that  it  was  "' soon  silently  returned  as  too  explosive  for  safe  handling." 
"  A  little  later  (he  adds)  the  Attorney  General  (Mr.  Gushing)  called  and 
asked  for  a  copy,  and  the  law  officer  of  the  Government,  whose  business 
it  is  to  speak  on  all  such  matters,  was  stricken  with  legal  dumbness,''  {lb.) 
How  much  more  startled  and  more  paralyzed  would  these  great  men  have 


12 


been  had  they  been  consulted  on  such  a  commission  as  this  ! — a  commis- 
sion not  to  sit  in  another  country,  and  to  try  offences  not  provided  for  by 
any  law  of  the  United  States,  civil  or  military,  but  in  their  own  country, 
and  in  a  part  of  it  where  there  are  laws  providing  for  their  trial  and  pun- 
ishment, and  civil  courts  clothed  with  ample  powers  for  both,  and  in  the 
daily  and  undisturbed  exercise  of  their  jurisdiction  ;  and  where,  if  there 
should  be  an  attempt  at  disturbance  by  a  force  which  they  had  not  the 
power  to  control,  they  could  invoke  (and  it  would  be  his  duty  to  afford  it) 
the  President  to  use  the  military  power  at  his  command,  and  which  every- 
body knows  to  be  ample  for  the  purpose. 

If  it  be  suggested  that  the  civil  courts  and  juries  for  this  District  could 
not  safely  be  relied  upon  for  the  trial  of  these  cases,  because  either  of  in- 
competency, disloyalty,  or  corruption,  it  would  be  an  unjust  reflection 
upon  the  judges,  upon  the  people,  upon  the  Marshal,  an  appointee  of  the 
President,  by  whom  the  juries  are  summoned,  and  upon  our  civil  institutions 
themselves — upon  the  very  institutions  on  whose  integrity  and  intelligence 
the  safety  of  our  property,  liberty,  and  lives,  our  ancestors  thought,  could 
not  only  be  safely  rested,  but  would  be  safe  nowhere  else.  If  it  be  sug- 
gested that  a  secret  trial,  in  whole  or  in  part,  as  the  Executive  might  deem 
expedient,  could  not  be  had  before  any  other  than  a  military  tribunal,  the 
answer  is  that  the  Constitution,  "  in  all  criminal  prosecutions,"  gives  the 
accused  "  the  right"  to  a  "  public  trial."  So  abhorrent  were  private  trials 
to  our  ancestors,  so  fatal  did  they  deem  them  to  individual  security,  that  they 
were  thus  denounced,  and,  as  they  no  doubt  thought,  so  guarded  against 
as  in  all  future  time  to  be  impossible.  If  it  be  suggested  that  witnesses 
may  be  unwilling  to  testify,  the  answer  is,  that  they  may  be. compelled  to 
appear  and  made  to  testify. 

But  the  suggestion,  upon  another  ground,  is  equally  without  force.  It 
rests  on  the  idea  that  the  guilty  only  are  ever  brought  to  trial — that  the 
only  object  of  the  Constitution  and  laws  in  this  regard  is  to  afford  the 
means  to  establish  alleged  guilt,  that  accusation,  however  made,  is  to  be 
esteemed  prima  facie,  evidence  of  guilt,  and  that  the  Executive  should 
])e  armed  without  other  restriction  than  his  own  discretion,  with  all  the, 
appliances  deemed  by  him  necessary  to  make  the  presumption  from  such 
evidence  concluvsive.  Never  was  there  a  more  dangerous  theory.  The 
peril  to  the  citizen  from  a  prosecution  so  conducted,  as  illustrated  in  all 
history — is  so  great  that  the  very  elementary  principles  of  constitutional 
liberty,  the  spirit  and  letter  of  the  Constitution  itself  repudiate  it. 


13 

II.  Innocent  parties,  sometimes  by  private  malice,  sometimes  for  a  mere 
partisan  purpose,  sometimes  from  a  supposed  public  policy,  have  been 
made  the  subjects  of  criminal  accusation.  History  is  full  of  such  instances. 
How  are  such  parties  to  be  protected  if  a  public  trial,  at  the  option  of  the 
Executive,  can  be  denied  them,  and  a  secret  one,  in  whole  or  in  part, 
substituted  ?  If  the  names  of  the  witnesses  and  their  evidence  are  not 
published,  what  obstacle  does  it  not  interpose  to  establish  their  innocence  ? 
The  character*of  the  witnesses  against  them  maybe  all  important  to  that 
end.  Kept  in  prison,  with  no  means  of  consulting  the  outer  world,  how 
can  they  make  the  necessary  inquiries  ?  How  can  those  who  may  know  the 
witnesses  be  able  to  communicate  with  them  on  the  subject  ?  A  trial  so  con- 
ducted, though  it  may  not — as  no  doubt  is  the  case  in  the  present  instance, 
be  intended  to  procure  the  punishment  of  any  but  the  guilty,  it  is  obvious 
subjects  the  innocent  to  great  danger.  It  partakes  more  of  the  character 
of  the  Inquisition,  which  the  enlightened  civilization  of  the  age  has  driven 
almost  wholly  out  of  existence,  than  of  a  tribunal  suited  to  a  free  people. 
In  the  palmiest  days  of  that  tribunal,  kings  as  well  as  people  stood 
abashed  in  its  presence,  and  dreaded  its  power.  The  accused  was  never 
informed  of  the  names  of  his  accusers,  heresy  suspected  was  ample  ground 
for  arrest,  accomplices  and  criminals  were  received  as  witnesses,  and  the 
whole  .trial  was  secret  and  conducted  in  a  chamber  almost  as  silent  as  the 
grave.  It  was  long  since  denounced  by  the  civilized  world,  not  because 
it  might  not  at  times  punish  the  heretic,  (then,  in  violation  of  all  rightful 
human  power,  deemed  a  criminal)  but  because  it  was  as  likely  to  punish 
the  innocent  as  the  guilty.  A  public  trial,  therefore,  by  which  the  names 
of  witnesses  and  the  testimony  are  given,  even  in  monarchical  and  despotic 
governments,  is  now  esteemed  amply  adequate  to  the  punishment  of  guilt, 
and  essential  to  the  protection  of  innocence.  Can  it  be  that  this  is  not 
true  of  us  ?  Can  it  be  that  a  secret  trial,  wholly  or  partially,  if  the 
Executive  so  decides,  is  all  that  an  American  citizen  is  entitled  to  ?  Such 
a  doctrine,  if  maintained  by  an  English  monarch,  would  shake  his  govern- 
ment to  its  very  centre,  and,  if  persevered  in,  would  lose  him  his  crown. 
It  will  be  no  answer  to  these  observations  to  say  that  this  particular  trial 
has  been  only  in  part  a  secret  one,  and  that  secresy  will  never  be  resorted 
to  except  for  purposes  of  justice.  The  reply  is,  that  the  principle  itself  is 
inconsistent  with  American  liberty,  as  recognized  and  secured  by  consti- 
tutional guaranties.  It  supposes  that  whether  these  guaranties  are  to  be 
enjoyed  in  the  particular  case,  and  to  what  extent,  is  dependent  on  Execu- 


14 


tive  will.  The  Constitution  in  tliis  regard,  is  designed  to  secure  them  in 
spite  of  such  will.  Its  patriotic  authors  intended  to  place  the  citizen,  in 
this  particular,  wholly  beyond  the  power,  not  only  of  the  Executive,  but 
of  every  department  of  the  Government.  They  deemed  the  right  to  a 
public  trial  vital  to  the  security  of  the  citizen,  and  especially  and  abso- 
lutely necessary  to  his  protection  against  Executive  power.  A  public 
trial  of  all  criminal  prosecutions  they  therefore  secured  by  general  and 
unqualified  terms.  What  would  these  great  men  have  said,  had  they 
been  asked  so  to  qualify  the  terms  as  to  warrant  its  refusal  under  any  cir- 
cumstances, and  make  it  dependent  upon  Executive  discretion  ?  The 
member  who  made  the  inquiry  would  have  been  deemed  by  them  a  traitor 
to  liberty,  or  insane.  What  would  they  have  said  if  told  that  without 
such  qualification,  the  Executive  would  be  able  legally  to  impose  it  as 
incidental  to  Executive  power  ?  If  not  received  with  derision,  it  would 
have  been  indignantly  rejected  as  an  imputation  upon  those  who,  at  any 
time  thereafter,  should  legally  fill  the  office. 

III.  Let  me  present  the  question  in  another  view.  If  such  a  Com- 
mission as  this,  for  the  trial  of  cases  like  the  present,  can  be  legally  con- 
stituted, can  it  be  done  by  mere  Executive  authority  ? 

1.  You  are  a  Court,  and,  if  legally  existing,  endowed  with  momentous 
power,  the  highest  known  to  man,  that  of  passing  upon  the  liberty  or  life 
of  the  citizen.  By  the  express  words  of  the  Constitution,  an  army  can 
only  be  raised  and  governed  and  regulated  by  laws  passed  by  Congress. 
In  the  exercise  of  the  power  to  rule  and  govern  it,  the  act  before  referred 
to,  of  the  10th  of  April,  180G,  establishing  the  articles  of  war,  was  passed. 
That  act  provides  only  for  courts-martial  and  courts  of  inquiry,  and 
designates  the  cases  to  be  tried  before  each,  and  the  laws  that  are  to 
govern  the  trial.  Military  commissions  are  not  mentioned,  and,  of  course, 
the  act  contains  no  provision  for  their  government.  Now,  it  is  submitted 
as  perfectly  clear  that  the  creation  of  a  court,  whether  civil  or  military,  is 
an  exclusive  legislative  function  belonging  to  the  department  upon  which 
the  legislative  power  is  conferred.  The  jurisdiction  of  such  a  court,  and 
the  lavv^s  and  regulations  to  guide  and  govern  it,  is  also  exclusively  legis- 
lative. What  cases  are  to  be  tried  by  it,  how  the  judges  are  to  be 
selected,  and  how  qualified,  what  are  to  be  the  rules  of  evidence,  and 
what  punishments  are  to  be  inflicted,  all  solely  belong  to  the  same  depart- 


15 


ment.    The  very  element  of  constitutional  liberty,  recognized  by  all 
modern  writers  on  government  as  essential  to  its  security,  and  carefully  in- 
corporated into  our  Constitution,  is  a  separation  of  the  legislative,  judicia], 
and  executive  powers.    That  this  separation  is  made  in  our  Constitution, 
no  one  will  deny.    Article  1st  declares  that  "All  legislative  powers  herein 
granted  shall  be  vested  in  a  Congress."'    Article  2d  vests  "the  Executive 
power'-  in  a  President,  and  Article  3d,  "the  judicial  power"  in  certain 
designated  courts  and  in  courts  to  be  thereafter  constituted  by  Congress. 
There  could  not  be  a  more  careful  segregation  of  the  three  powers.  If, 
then,  courts,  their  laws,  modes  of  proceeding,  and  judgments,  belong  to 
legislation,  (and  this,  I  suppose,  will  not  be  questioned,)  in  the  absence  of 
legislation  in  regard  to  this  court  and  its  jurisdiction  to  try  the  present 
cases,  it  has  for  that  purpose  no  legal  existence  or  authority.    The  Execu- 
tive, whose  functions  are  altogether  executive,  cannot  confer  it.  The 
offences  to  be  tried  by  it,  the  laws  to  govern  its  proceedings,  the  punish- 
ment it  may  award,  cannot,  for  the  same  reason,  be  prescribed  by  the 
Executive.    These,  as  well  as  the  mere  constitution  of  the  Court,  all  ex- 
clusively belong  to  Congress.    If  it  be  contended  that  the  Executive  has 
the  powers  in  question,  because  by  implication  they  are  involved  in  the 
war  power,  or  in  the  President's  constitutional  function  as  commander-in- 
chief  of  the  -army,  then  this  consequence  would  follow,  that  they  would 
not  be  subject  to  Congressional  control,  as  that  department  has  no  more 
right  to  interfere  with  the  constitutional  power  of  the  Executive  than  that 
power  has  a  right  to  interfere  with  that  of  Congress.    If  by  implication 
the  powers  in  question  belong  to  the  Executive,  he  may  not  only  consti- 
tute and  regulate  military  commissions  and  prescribe  the  laws  for  their 
government,  but  all  legislation  upon  the  subject  by  Congress  would  be 
usurpation.    That  the  proposition  leads  to  this  result  would  seem  to  be 
clear,  and  if  it  does,  that  result  itself  is  so  inconsistent  with  all  previous 
legislation  and  all  executive  practice,  and  so  repugnant  to  every  principle 
of  constitutional  liberty,  that  it  demonstrates  its  utter  unsoundness. 
Under  the  power  given  to  Congress  "to  make  rules  for  the  government 
and  regulation  of  the  land"'  forces,  they  have  from  time  to  time,  up  to 
and  including  the  act  of  the  10th  of  April,  1806,  and  since,  enacted  such 
rules  as  they  deemed  to  be  necessary,  as  well  in  war  as  in  peace,  and  their 
authority  to  do  so  has  never  been  denied.    This  power,  too,  to  govern 
and  regulate,  from  its  very  nature,  is  exclusive.    Whatever  is  not  done 
under  it  is  to  be  considered  as  purposely  omitted.    The  words  used  in 


16 


the  delegation  of  the  power,  "govern  and  regulate,"  necessarily  embrace 
the  entire  subject  and  exclude  all  like  authority  in  others.  The  end  of 
such  a  power  cannot  be  attained  except  through  uniformity  of  govern- 
ment and  regulation,  and  this  is  not  to  be  attained  if  the  power  is  in  two 
hands.  To  be  effective,  therefore,  it  must  be  in  one,  and  the  Constitution 
gives  it  to  one — to  Congress — in  express  terms,  and  nowhere  intimates  a 
purpose  to  bestow  it,  or  any  portion  of  it,  upon  any  other  department. 
In  the  absence,  then,  of  all  mention  of  military  commissions  in  the  Con- 
stitution, and  in  the  presence  of  the  sole  authority  it  confers  on  Congress 
by  rules  of  its  own  enacting  to  govern  and  regulate  the  army,  and  in  the 
absence  of  all  mention  of  such  commissions  in  the  act  of  the  10th  of 
April,  1806,  and  of  a  single  word  in  that  act  or  in  any  other,  how  can  the 
power  be  considered  as  in  the  President  ?  Further,  upon  what  ground, 
other  than  those  I  have  examined,  can  his  authority  be  placed  ? 

I.  Is  it  that  the  constitutional  guaranties  referred  to  are  designed  only 
for  a  state  of  peace  ?  There  is  not  a  syllable  in  the  instrument  that  jus- 
tifies, even  plausibly,  such  a  qualification.  They  are  secured  by  the  most 
general  and  comprehensive  terms,  wholly  inconsistent  with  any  restriction. 
They  are  also  not  only  not  confined  to  a  condition  of  peace,  but  are  more 
peculiarly  necessary  to  the  security  of  personal  liberty  in  war  than  in 
peace.  All  history  tells  us  that  war  at  times  maddens  the  people,  frenzies 
government,  and  makes  both  regardless  of  constitutional  limitations  of 
power.  Individual  safety,  at  such  periods,  is  more  in  peril  than  at  any 
other.  Constitutional  limitations  and  guaranties  are  then  also  absolutely 
necessary  to  the  protection  of  the  government  itself.  The  maxim,  ^'salus 
populi  suprema  est  lex,''^  is  but  fit  for  a  tyrant's  use.  Under  its  pretence 
the  grossest  wrongs  have  been  committed,  the  most  awful  crimes  perpe- 
trated, and  every  principle  of  freedom  violated,  until  at  last,  worn  down 
by  suffering,  the  people,  in  very  despair,  have  acquiesced  in  a  resulting 
despotism.  The  safety  which  liberty  needs,  and  without  which  it  sickens 
and  dies,  is  that  which  law,  and  not  mere  unlicensed  human  will,  affords. 
The  Aristotelian  maxim,  Salus  publica  siipremas  est  lex^^ — "  Let  the 
public  weal  be  under  the  protection  of  the  law,"  is  the  true  and  only  safe 
maxim.  Nature  without  law  would  be  chaos  ;  government  without  law, 
anarchy  or  despotism.  Against  both  these  last,  in  war  and  in  peace,  the 
Constitution  happily  protects  us. 

* 


1? 

II.  If  tlie  power  in  question  is  claimed  under  the  autboritv  supposed 
to  be  given  the  President  in  certain  cases  to  suspend  the  writ  of  habeas 
corpus  and  to  declare  martial  law,  the  claim  is  equally,  if  not  more  evi- 
dently untenable. 

1.  Because  the  first  of  these  powers,  if  given  to  the  President  at  all,  is 

given  "  when,  in  cases  of  rebellion  or  invasion,'"  he  deems  the  public 
safety  requires  it.  I  think  he  has  this  power,  but  there  are  great  and  pa- 
triotic names  who  think  otherwise.  But  if  he  has  it,  or  if  it  be  in  Con- 
gress alone,  it  is  entirely  untrue  that  its  exercise  works  any  other  result 
than  the  suspension  of  the  writ — the  temporary  suspension  of  the  right  of 
having  the  cause  of  arrest  passed  upon  at  once  by  the  civil  judges.  It  in 
no  way  impairs  or  suspends  the  other  rights  secured  to  the  accused.  In 
what  court  he  is  to  be  tried,  how  he  is  to  be  tried,  what  evidence  is  to  be 
admitted,  and  what  judgment  pronounced  are  all  to  be  what  the  Constitu- 
tion secures,  and  the  laws  provide  in  similar  cases,  when  there  is  no  sus- 
pension of  the  writ.  The  purpose  of  the  writ  is  merely,  without  delay,  to 
ascertain  the  legality  of  the  arrest.  If  adjudged  legal,  the  party  is  de- 
tained ;  if  illegal,  discharged.  But  in  either  contingency,  when  he  is 
called  to  answer  any  criminal  accusation,  and  he  is  a  civilian  and  not  sub- 
ject to  the  articles  of  war  constitutionally  enacted  by  Congress,  it  must  be 
done  by  presentment  or  indictment,  and  his  trial  be  had  in  a  civil  court, 
having,  by  State  or  Congressional  legislation,  jurisdiction  over  the  crime 
and  under  laws  governing  the  tribunal  and  defining  the  punishment.  The 
very  fact,  too.  that  express  power  is  given  in  a  certain  condition  of  things 
to  suspend  the  writ  referred  to,  and  that  no  power  is  given  to  suspend  or 
deny  any  of  the  other  securities  for  personal  liberty  provided  by  the  Con- 
stitution, is  conclusive  to  show  that  all  of  the  latter  were  designed  to  be  in 
force  "in  cases  of  rebellion  or  invasion,''  as  well  as  in  a  state  of  perfect 
peace  and  safety. 

III.  I  have  already  referred  to  the  act  of  1806  establishing  the  articles 
of  war,  and  said  what  must  be  admitted,  that  it  provides  for  no  military 
court  like  this.  But  for  argument's  sake  let  it  be  conceded  that  it  does. 
And  I  then  maintain,  with  becoming  confidence  and  due  respect  for  a  dif- 
ferent opinion,  that  it  does  not  embrace  the  crimes  charged  against  these 
parties  or  the  parties  themselves. 


2 


18 


First.  The  charge  is  a  traitorous  conspiracy  to  take  the  lives  of  the 
designated  persons  "in  aid  of  the  existing  armed  rebellion."  Second. 
That  in  the  execution  of  the  conspiracy,  the  actual  murder  of  the  late 
President,  and  the  attempted  murder  of  the  Secretary  of  State,  occurred. 
Throughout  the  charge  and  its  specification,  the  conspiracy  and  its 
attempted  execution  are  alleged  to  have  been  traitorous.  The  accusation, 
therefore,  is  not  one  merely  of  murder,  but  of  murder  designed  and  in 
part  accomplished,  with  traitorous  purpose.  If  the  charge  is  true,  and 
the  intent  (which  is  made  a  substantial  part  of  it)  be  also  true,  then  the 
crime  is  treason,  and  not  simple  murder.  Treason  against  the  United 
States,  as  defined  by  the  Constitution,  can  "consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  com- 
fort." {Ill  Art.)  This  definition  not  only  tells  us  what  treason  is,  but 
tells  us  that  no  other  crime  than  the  defined  one  shall  be  considered  the 
offence.  And  the  same  section  provides  that  "no  person  shall  be  con- 
victed of  treason,  except  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court,"  and  gives  to  Congress  the 
power  to  declare  what  its  punishment  shall  be.  The  offence  in  the  gene- 
ral is  the  same  in  England.  In  that  country,  at  no  period  since  its  free- 
dom became  settled,  has  any  other  treason  been  recognized.  During  the 
pendency  of  this  rebellion,  (never  before,)  it  has  been  alleged  that  there 
exists  with  us  the  offence  of  military  treason,  punishable  by  the  laws  of 
war.  It  is  so  stated  in  the  instructions  of  General  Halleck  to  the  then 
commanding  officer  in  Tennessee,  of  the  5th  of  March,  1863. — (Law- 
rence^s  Wheaton,  Suppt.  p).  41.)  But  Halleck  confines  it  to  acts  com- 
mitted against  the  army  of  a  belligerent,  when  occupying  the  territory  of 
the  enemy.  And  he  says  what  is  certainly  true,  if  such  an  offence  can  be 
committed,  that  it  "is  broadly  distinguished  from  the  treason  defined  in 
the  constitutional  and  statutory  laws,  and  made  punishable  by  the  civil 
courts."  But  the  term  military  treason  is  not  to  be  found  in  any  English 
work  or  military  order,  or,  before  this  rebellion,  in  any  American  au- 
thority. ■ 

It  has  evidently  been  adopted  during  the  rebellion  as  a  doctrine  of 
military  law  on  the  authority  of  continental  writers  in  governments  less 
free  than  those  of  England  and  the  United  States,  and  in  which,  because 
they  are  less  free,  treason  is  not  made  to  consist  of  certain  specific  acts, 
and  no  others.  But  if  Halleck  is  right,  and  ail  our  prior  practice,  and 
that  of  England,  from  whom  we  derive  ours,  is  to  be  abandoned,  the 


cases  before  you  are  not  cases  of  '-military  treason,"  as  be  defines 
it.  Wlien  the  offence  here  alleged  is  stated  to  have  occurred  in  this 
District,  the  United  States  were  not  and  did  not  claim  to  be  in  its 
occupation  as  a  belligerent,  nor  was  it  pretended  that  the  people  of  this 
District  were  in  a  belligerent  sense  enemies.  On  the  contrary,  they  were 
citizens  entitled  to  every  right  of  citizenship=  Nor  were  the  parties  on 
trial  enemies.  They  were  cither  citizens  of  the  District,  or  of  Maryland, 
and  under  the  protection  of  the  Constitution.  The  offence  charged,  then, 
being  treason,  it  is  treason  as  known  to  the  Constitution  and  laws,  and 
can  only  be  tried  and  punished  as  they  provide.  To  consider  these  parties 
belligerents,  and  their  alleged  offence  military  treason  is  not  only  unwar- 
ranted by  the  authority  of  Halleck,  but  is  in  direct  conflict  with  the  Con- 
stitution and  laws  which  the  President  and  all  of  us  are  bound  to  support 
and  defend.  The  offence,  then,  being  treason,  as  known  to  the  Constitu- 
tion, its  trial  by  a  military  court  is  clearly  illegal.  And  this  for  obvious 
reasons.  Under  the  Constitution  no  conviction  of  such  an  offence  can  be 
had,  ''unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court."  And  under  the  laws  the  parties  are  entitled 
to  have  "  a  copy  of  the  indictment  and  a  list  of  the  jury  and  witnesses, 
with  the  names  and  places  of  abode  of  both,  at  least  three  entire  days 
before  the  trial."  They  also  have  the  right  to  challenge  peremptorily 
thirty-five  of  the  jury,  and  to  challenge  for  cause  without  limitation.  And 
finally,  unless  the  indictment  shall  be  found  by  a  grand  jury  within  three 
years  next  after  the  treason  done  or  committed,  they  shall  not  be  prose- 
cuted, tried,  or  punished.  (Act  oOth  April,  1790,  1  stat.  at  large,  118, 
119.)  Upon  what  possible  ground,  therefore,  can  this  Commission  possess 
the  jurisdiction  claimed  for  it  ?  It  is  not  alleged  that  it  is  subject  to  the 
provisions  stated,  and  in  its  very  nature  it  is  impossible  that  it  should  be. 
The  very  safeguards  designed  by  the  Constitution,  if  it  has  such  jurisdic- 
tion, are  wholly  unavailing.  Trial  by  jury  in  all  cases,  our  English  an- 
cestors deemed  (as  Story  correctly  tells  us)  ''the  great  bulwark  of  their 
civil  and  political  liberties,  and  watched  vrith  an  unceasing  jealousy  and 
solicitude.""  It  constituted  one  of  the  fundamental  articles  of  Magna 
Charta — "  Nidlus  liherhomo  capiatur  nec  imprisonetur  aut  exulet,  aut 
aliquo  modo,  destruatur,  &c.;  nisi  per  I  eg  ae  judicium  parium  suorum, 
vel  per  legem  terrea.-  This  great  right  the  American  colonists  brought 
with  them  as  their  birth-right  and  inheritance.  It  landed  with  them  at 
Jamestown  and  on  the  rock  of  Plymouth,  and  was  equally  prized  by 


20 


Cavalier  and  Puritan  ;  and  ever  since,  to  the  breaking  out  of  the  rebellion, 
has  been  enjoyed,  and  esteemed  the  protection  and  proud  privilege  of 
their  posterity.  At  times,  during  the  rebellion,  it  has  been  disregarded 
and  denied.  The  momentous  nature  of  the  crisis,  brought  about  by  that 
stupendous  crime,  involving,  as  it  did,  the  very  life  of  the  nation,  has 
caused  the  people  to  tolerate  such  disregard  and  denial.  But  the  crisis, 
thank  God,  has  passed.  The  authority  of  the  Government  throughout  our 
territorial  limits  is  reinstated  so  firmly  that  reflecting  men,  here  and  else- 
where, are  convinced  that  the  danger  has  passed  never  to  return.  The 
result  proves  that  the  principles  on  which  the  Government  rests  have  im- 
parted to  it  a  vitality  that  will  cause  it  to  endure  for  all  time,  in  spite  of 
foreign  invasion  or  domestic  insurrection ;  and  one  of  those  principles — 
the  choicest  one — is  the  right  in  cases  of  "  criminal  prosecutions  to  a 
speedy  and  public  trial  by  an  impartial  jury,"  and  in  cases  of  treason  to 
the  additional  securities  before  adverted  to.  The  great  purpose  of  Magna 
Charta  and  the  Constitution  was  (to  quote  Story  again)  "to  guard  against 
a  spirit  of  oppression  and  tyranny  on  the  part  of  rulers,  and  against  a 
spirit  of  violence  and  vindictiveness  on  the  part  of  the  people."  "  The 
■appeal  for  safety  can  under  such  circumstances  scarcely  be  made  by  iymo- 
cence  in  any  other  manner  than  by  the  severe  control  of  courts  of  justice, 
and  by  the  firm  and  impartial  verdict  of  a  jury  sworn  to  do  right  and 
guided  solely  by  legal  evidence  and  a  sense  of  duty.  In  such  a  course 
there  is  a  double  security  against  the  prejudices  of  judges,  who  may 
partake  of  the  wishes  and  opinions  of  the  Government,  and  against  the 
passions  of  the  multitude,  who  may  demand  their  victim  with  a  clamorous 
precipitancy."  And  Mr.  Justice  Blackstone,  with  the  same  deep  sense  of 
its  value,  meets  the  prediction  of  a  foreign  writer,  "that  because  Rome, 
Sparta,  and  Carthage  have  lost  their  liberties,  those  of  England  in  time 
must  perish,"  by  reminding  him,  "  that  Rome,  Sparta,  and  Carthage,  at 
the  time  when  their  liberties  were  lost,  were  strangers  to  the  trial  by 
jury,^^  (3  Bla.,  319.)  That  a  right  so  valued,  and  esteemed  by  our 
fathers  to  be  so  necessary  to  civil  liberty,  so  important  to  the  very  exist- 
ence of  a  free  government,  was  designed  by  them  to  be  made  to  depend 
for  its  enjoyment  upon  the  war  power,  or  upon  any  power  entrusted  to 
any  department  of  our  Government,  is  a  reflection  on  their  intelligence 
and  patriotism. 


21 


IV.  But  to  proceed  :  The  articles  of  war,  if  they  provided  for  the 
punishment  of  the  crimes  on  trial,  and  authorized  such  a  court  as  this,  do 
not  include  such  parties  as  are  now  on  trial.  And,  until  the  rebellion,  I 
am  not  aware  that  a  different  construction  was  ever  intimated.  It  is  the 
exclusive  fruit  of  the  rebellion. 

The  title  of  the  act  is,  "  An  act  for  establishing  roles  and  articles  for 
the  government  of  the  armies  of  the  United  States.''^ 

The  first  section  states  "the  following  shall  be  the  rules  and  articles  by 
which  the  armies  of  the  United  States  shall  be  governed,''  and  every 
other  section,  except  the  5Gth  and  5tth,  are,  in  words,  confined  to  persons 
belonging  to  the  army  in  some  capacity  or  other.  I  understand  it  to  be 
held  by  some,  that  because  such  words  are  not  used  in  the  two  sections 
referred  to.  it  was  the  design  of  Congress  to  include  persons  who  do  not. 
belong  to  the  army.  In  my  judgment,  this  is  a  wholly  untenable  con- 
struction :  but  if  it  was  a  correct  one,  it  would  not  justify  the  use  sought 
to  be  made  of  it  in  this  instance.  It  would  not  bring  these  parties  for 
their  alleged  crime  before  a  military  court  known  to  the  act ;  certainly  not 
before  a  military  commission — a  court  unknown  to  the  act.  The  offence 
charged  is  a  traitorous  conspiracy,  and  murder  committed  in  pursuance  of  it. 
Neither  offence,  conspiracy  or  murder,  if  indeed  tvro  are  charged,  is  em- 
braced by  either  the  oGth  or  5Tth  articles  of  the  statute.  The  SGth  prohibits 
the  relieving  '''the  enemy  with  money,  victuals,  or  ammunition,  or  knowingly 
harboring  and  protecting  him."  Sophistry  itself  cannot  bring  the  offences 
in  question,  under  this  article.  The  5Tth  prohibits  only  the  '''holding 
correspondence  with,  or  giving  intelligence  to  the  enemy,  either  directly 
or  indirectly  "  It  is  equally  clear  that  the  ofiences  in  question  are  not 
within  this  provision.  Bat,  in  fact,  the  two  articles  relied  upon  admit  of 
no  such  construction  as  is  understood  to  be  claimed.  This  is  thought  to 
be  obvious,  not  only  from  the  general  character  of  the  act,  and  of  all  the 
other  articles  it  contains,  but  because  the  one  immediately  preceding,  like 
all  those  preceding  and  succeeding  it,  other  than  the  56th  and  oTtb,  in- 
cludes only  persons  belonging  to  the  "armies  of  the  United  States."  Its 
language  is,  "whosoever  belonging  to  the  armies  of  the  United  States, 
employed  in  foreign  parts,"  shall  do  the  act  prohibited  shall  suffer  the  pre- 
scribed punishment.  Xow,  it  is  a  familiar  rule  of  interpretation,  perfectly 
well  settled,  in  such  a  case,  that  unless  there  be  something  in  the  following 
sections  that  clearly  shows  a  purpose  to  make  them  more  comprehensive 
than  their  immediate  predecessor,  they  are  to  be  construed  as  subject  to 


22 


the  same  limitation.  So  far  from  there  being  in  this  instance,  any  evidence 
of  a  different  purpose,  the  declared  object  of  the  statute,  as  evidenced 
by  its  title,  its  first  section,  and  its  general  contents,  are  all  inconsistent 
with  any  other  construction.  And  when  to  this  it  is  considered  that  the 
power  exercised  by  Congress  in  passing  the  statute  was  merely  the  con- 
stitutional one  to  make  rules  for  the  government  and  regulation  of  the 
army,  it  is  doing  great  injustice  to  that  department  to  suppose  that  in  exer- 
cising it  they  designed  to  legislate  for  any  other  class.  The  words,  therefore 
in  the  55th  article,  ''belonging  to  the  armies  of  the  United  States,"  quali- 
fying the  immediate  preceding  word,  "  whosoever,"  are  applicable  to  the 
56th  and  5tth,  and  equally  qualify  the  same  word  whosoever"  also  used 
in  each  of  them.  And,  finally,  upon  this  point  I  am  supported  by  the 
authority  of  Lieutenant  General  Scott.  The  Commission  have  seen  from 
my  previous  reference  to  his  autobiography  that  he  placed  his  right  to 
issue  his  martial  law  order,  establishing,  amongst  other  things,  military 
commissions  to  try  certain  offences  in  a  foreign  country,  upon  the  ground 
that  otherwise  they  would  go  unpunished,  and  his  army  become  demoral- 
ized. One  of  these  offences  was  murder  committed  or  attempted,  and 
for  such  an  offence  he  tells  us  that  the  articles  of  war  provided  no  court 
for  their  trial  and  punishment,  "  no  matter  by  whom  or  on  whom  com- 
mitted." And  this  opinion  is  repeated  in  the  4th  clause  of  his  order,  as 
true  of  all  the  designated  offences,  "  except  in  the  very  restricted  case  in 
the  9th  of  the  article." 

Y.  There  are  other  views  which  I  submit  to  the  serious  attention  of 
the  Commission. 

I.  The  mode  of  proceeding  in  a  court  like  this,  and  which  has  been 
pursued  by  the  prosecution,  with  your  approval,  because  deemed  legal  by 
both,  is  so  inconsistent  with  the  proceedings  of  civil  courts,  as  regulated 
for  ages  by  established  law,  that  the  fact,  I  think,  demonstrates  that  per- 
sons not  belonging  to  the  array  cannot  be  subjected  to  such  a  jurisdiction. 
1.  The  character  of  the  pleadings.  The  offence  charged  is  a  conspiracy 
with  persons  not  within  the  reach  of  the  Court,  and  some  of  them  in  a 
foreign  country,  to  commit  the  alleged  crime.  To  give  you  jurisdiction, 
the  design  of  the  accused  and  their  co-conspirators  is  averred  to  have 
been  to  aid  the  rebellion,  and  to  accomplish  that  end  not  only  by  the  mur- 
der of  the  President  and  Lieutenant  General  Grant,  but  of  the  Vice 


President  and  Secretary  of  State.  It  is  further  averred  that  the  Presi- 
dent being  murdered,  the  Vice  President  becoming  thereby  President, 
and  as  such  Commander-in-Chief,  the  purpose  was  to  murder  him  ;  and  as 
in  the  contingency  of  the  death  of  both,  it  would  be  the  duty  of  the  Sec- 
retary of  State  to  cause  an  election  to  be  held  for  President  and  Yice 
President,  he  was  to  be  murdered  in  order  to  prevent  a  ''lawful  election"' 
of  these  officers  ;  and  that  by  all  these  means,  ''aid  and  comfort"  were  to 
be  given  "  the  insurgents  engaged  in  armed  rebellion  against  the  United 
States,"  and  "the  subversion  and  overthrow  of  the  Constitution  and  laws 
of  the  United  States"  thereby  effected.  That  such  pleading  as  this 
would  not  be  tolerated  in  a  civil  court  I  suppose  every  lawyer  will  con- 
cede. It  is  argumentative,  and  even  in  that  character  unsound.  The 
continuance  of  our  Government  does  not  depend  on  the  lives  of  any  or 
of  all  of  its  public  servants.  As  fact  or  law,  therefore,  the  pleading  is 
fatally  defective.  The  Government  has  an  inherent  power  to  preserve 
itself,  which  no  conspiracy  to  murder  or  murder  can  in  the  slightest  degree 
impair.  And  the  result  which  we  have  just  witnessed  proves  this  and 
shows  the  folly  of  the  madman  and  fiend  by  whose  hands  our  late  lamented 
President  fell.  He,  doubtless,  thought  that  he  had  done  a  deed  that  would 
subvert  the  "  Constitution  and  laws."  We  know  that  it  has  not  had  even 
a  tendency  to  that  result.  Xot  a  power  of  the  Government  was  sus- 
pended ;  all  progressed  as  before  the  dire  catastrophe.  A  cherished  and 
almost  idolized  citizen  was  snatched  from  us  by  the  assassin's  arm,  but 
there  was  no  halt  in  the  march  of  the  Government.  That  continued  in 
all  its  majesty  wholly  unimpeded.  The  only  effect  was  to  place  the  nation 
in  tears  and  drape  it  in  mourning,  and  to  awake  the  sympathy  and  excite 
the  indignation  of  the  world. 

II.  But  this  mode  of  pleading  renders,  it  would  seem,  inapplicable,  the 
rules  of  evidence  known  to  the  civil  courts.  It  justifies,  in  the  opinion  of 
the  Judge  Advocate  and  the  Court,  (or  what  has  been  done  would  not  have 
been  done,)  a  latitude  that  no  civil  court  would  allow,  as  in  the  judgment 
of  such  a  court  the  accused,  however  .innocent,  could  not  be  supposed 
able  to  meet  it.  Proof  has  be.en  received  not  only  of  distinct  offences 
from  those  charged,  but  of  such  offences  committed  by  others  than  the 
parties  on  trial.  Even  in  regard  to  the  party  himself,  other  offences 
alleged  to  have  been  previously  committed  by  him  cannot  be  proved.  At 
one  time  a  dift^erent  practice  prevailed  in  England,  and  does  now,  it  is 


24: 


believed,  in  some  of  the  Continental  governments,    But  since  the  days  of 
Lord  Holt  (a  name  venerated  by  lawyers  and  all  admirers  of  enlightened 
jurisprudence)  it  has  not  prevailed  in  England.    In  the  case  of  Harrison, 
tried  before  that  judge  for  murder,  the  counsel  for  the  Government  offered 
a  witness  to  prove  some  felonious  design  of  the  prisoner  three  years  be- 
fore.   Holt  indignantly  exclaimed,  "  Hold  !  hold  !  v/hat  are  you  doing 
now  ?    How  can  he  defend  himself  from  charges  of  which  he  has  no 
notice  ?    And  how  many  issues  are  to  be  raised  to  perplex  me  and  the 
jury  ?    Away  !  away  !  that  ought  not  to  be — that  is  nothing  to  the  mat- 
ter."   (12  State  Trials,  833-8t4.)    I  refer  to  this  case  not  to  assail 
what  has  been  done  in  these  cases  contrary  to  this  rule,  because  I  am 
bound  to  infer  that  before  such  a  commission  as  this  the  rule  has  no  legal 
force.    If,  in  a  civil  court,  then,  these  parties  would  be  entitled  to  the 
benefit  of  this  rule,  one  never  departed  from  in  such  courts,  they  would 
not  have  had  proved  against  them  crimes  alleged  to  have  been  committed 
by  others,  and  having  no  necessary  or  legal  connection  with  those  charged. 
With  the  same  view,  and  not  denying  the  right  of  the  Commission  in  the 
particular  case  I  am  about  to  refer  to,  but  to  show  that  the  Constitution 
could  not  have  designed  to  subject  citizens  to  the  practice,  I  cite  the 
same  judge  to  prove  that  in  a  civil  court  those  parties  could  not  have  been 
legally  fettered  during  their  trial.    In  the  case  of  Cranbum,  accused  as 
implicated  in  the  "  assassination  plot,"  on  trial  before  the  same  judge, 
Holt  put  an  end  to  what  Lord  Campbell  terms  "the  revolting  practice  of 
trying  prisoners  in  fetters."    Hearing  the  clanking  of  chains,  though  no 
complaint  was  made  to  him,  he  said,  "  I  should  like  to  knov.^  why  the  pri- 
soner is  brought  in  ironed."    "  Let  them  be  instantly  knocked  oif.  When 
prisoners  are  tried  they  should  stand  at  their  ease."    (13  State  Trials, 
221,  2d  Campbell,  Lives  Chief  Justices,  140.)    Finally,  I  deny  the 
jurisdiction  of  the  Commission  not  only  because  neither  Constitution  nor 
laws  justify,  but,  on  the  contrary,  repudiate  it,  but  on  the  ground  that  all 
the  experience  of  the  past  is  against  it.    Jefferson,  ardent  in  the  prose- 
cution of  Burr,  and  solicitous  for  his  conviction,  from  a  firm  belief  of  his 
guilt,  never  suggested  that  he  should  be  tried  before  any  other  than  a 
civil  court.    And  in  that  trial,  so  ably  presided  over  by  Marshall,  the 
prisoner  was  allowed  to  "stand  at  his  ease;"  was  granted  every  constitu- 
tional privilege,  and  no  evidence  was  permitted  to  be  given  against  him  but 
such  as  a  civil  court  recognizes  ;  and  in  that  case  as  in  this,  the  overthrow 
of  the  Government  w^as  the  alleged  purpose,  and  yet  it  was  not  intimated 


26 

in  any  quarter  that  lie  could  be  tried  by  a  military  tribunal.  In  England, 
too,  the  doctrine  on  which  this  prosecution  is  placed  is  unknown.  At- 
tempts were  made  to  assassinate  George  the  Third  and  the  present  Queen, 
and  Mr.  Percival,  then  Prime  Minister,  was  assassinated  as  he  entered 
the  House  of  Commons.  In  the  first  two  instances,  the  design  was  to 
murder  the  commander-in-chief  of  England's  army  nnd  navy,  in  whom, 
too,  the  whole  war  power  of  the  Government  was  also  vested;  in  the  last 
a  secretary,  clothed  with  powers  as  great  at  least  as  those  that  belong  to 
our  Secretary  of  State  ;  and  yet  in  each  the  parties  accused  were  tried 
before  a  civil  court,  no  one  suggesting  any  other.  And  during  the  period 
of  the  French  Eevolution,  when  its  principles,  if  principles  they  can  be 
termed,  were  being  inculcated  in  England  to  an  extent  that  alarmed  the 
Government  and  caused  it  to  exert  every  power  it  was  thought  to  pos- 
sess to  frustrate  their  effect,  when  the  writ  of  habeas  corpus  was  sus- 
pended, and  arrests  and  prosecutions  resorted  to  almost  without  limit,  no 
one  suggested  a  trial,  except  in  the  civil  courts.  And  yet  the  apprehen- 
sion of  the  Government  v>'as,  that  the  object  of  the  alleged  conspirators 
was  to  subvert  its  authority,  bring  about  its  overthrow,  and  subject  the 
kingdom  to  the  horrors  of  the  French  Revolution,  then  shocking  the 
nations  of  the  world.  Hardy,  Home  Took,  and  others  were  tried  by  civil 
courts,  and  their  names  are  remembered  for  the  principles  of  freedom 
that  were  made  triumphant  mainly  through  the  efforts  of  "that  great 
genius,"  in  the  words  of  a  modern  English  statesman,  (Earl  Russel],) 
"  whose  sword  and  buckler  protected  justice  and  freedom  during  the  dis- 
astrous period;'-  having  '-'the  tongue  of  Cicero  and  the  soul  of  Hamp- 
den, an  invincible  orator  and  an  undaunted  patriot." — Erskine. 

As  it  was,  these  trials  were  conducted  in  so  relentless  a  spirit,  and,  as 
it  was  thought,  with  such  disregard  of  the  rights  of  the  subject,  that  the 
administration  of  the  day  were  not  able  to  withstand  the  torrent  of  the 
people's  indignation.  What  would  have  been  their  fate,  individually  as  well 
as  politically,  if  the  cases  had  been  tried  before  a  military  commission, 
and  life  taken  ?  Can  it  be  that  in  this  particular  an  American  citizen  is 
not  entitled  to  all  the  rights  that  belong  to  a  Britksh  subject  ?  Can  it  be 
that  with  us  Executive  power  at  times  casts  into  the  shade  and  renders  all 
other  power  subordinate  ?  An  American  statesman,  with  a  world-wide 
reputation,  long  since  gave  answer  to  these  inquiries.  In  a  debate  in  the 
Senate  of  the  United  States,  in  which  he  assailed  what  he  deemed  an  un- 
warranted assumption  of  Executive  power,  he  said,  "  the  first  object  of  a 


26 


free  people  is  the  preservation  of  their  liberties,  and  liberty  is  only  to  be 
maintained  by  constitutional  restraints  and  just  divisions  of  political 
power."  "It  does  not  trust  the  amiable  weaknesses  of  human  nature, 
and,  therefore,  will  not  permit  power  to  overstep  its  prescribed  limits, 
though  benevolence,  good  intent,  and  patriotic  intent  come  along  with  it." 
And  he  added,  "Mr.  President,  the  contest  for  ages  has  been  to  rescue 
liberty  from  the  grasp  of  Executive  power."  "  In  the  long  list  of  the 
champions  of  human  freedom  there  is  not  one  name  dimmed  by  the  re- 
proach of  advocating  the  extension  of  Executive  authority."  Thoughts 
so  eloquently  expressed  appeal  with  subduing  power  to  every  patriotic 
heart,  and  demonstrate  that  "Webster,  if  here,  would  be  heard  raising  his 
mighty  voice  against  the  jurisdiction  of  this  Commission — a  jurisdiction 
placed  upon  Executive  authority  alone.  But  it  has  been  urged  that 
martial  law  warrants  such  a  commission,  and  that  such  law  prevails  here. 
The  doctrine  is  believed  to  be  alike  indefensible  and  dangerous.  It  is 
not,  however,  necessary  to  inquire  whether  martial  law,  if  it  did  prevail, 
would  maintain  your  jurisdiction,  as  it  does  not  prevail.  It  has  never 
been  declared  by  any  competent  authority,  and  the  civil  courts  we  know 
are  in  the  full  and  undisturbed  exercise  of  all  their  functions.  We  learn, 
and  the  fact  is  doubtless  true,  that  one  of  the  parties,  the  very  chief  of 
the  alleged  conspiracy,  has  been  indicted,  and  is  about  to  be  tried  before 
one  of  those  courts.  If  he,  the  alleged  head  and  front  of  the  conspiracy, 
is  to  be  and  can  be  so  tried,  upon  v,^hat  ground  of  right,  of  fairness,  or  of 
policy,  can  the  parties  who  are  charged  to  have  been  his  mere  instruments 
be  deprived  of  the  same  mode  of  trial?  It  may  be  said  that  in  acting 
under  this  commission  you  are  but  conforming  to  an  order  of  the  Presi- 
dent, which  you  are  bound  to  obey.  Let  me  examine  this  for  a  moment. 
If  that  order  merely  authorizes  you  to  investigate  the  cases  and  report 
the  facts  to  him  and  not  to  pronounce  a  judgment,  and  is  to  that  extent 
legal,  then  it  is  because  the  President  has  the  power  himself,  without  such 
a  proceeding,  to  punish  the  crime,  and  has  only  invoked  your  assistance 
to  enable  him  to  do  it  the  more  justly.  Can  this  be  so  ?  Can  it  be  that 
the  life  of  a  citizen,  however  humble,  be  he  soldier  or  not,  depends  in  any 
case  on  the  mere  will  of  the  President  ?  And  yet  it  does,  if  the  doctrine 
be  sound.  What  more  dangerous  one  can  be  imagined  ?  Crime  is 
defined  by  law  and  is  to  be  tried  and  punished  under  the  law.  Wliat  is 
murder,  treason,  or  conspiracy,  and  what  is  admissible  evidence  to  prove 
either,  are  all  legal  questions,  and  many  of  them,  at  times,  difficult  of  cor- 


rect  solution.  What  the  facts  are  iriay  also  present  difficult  inquiries. 
To  pass  upon  the  first,  the  Constitution  provides  courts  consisting  of 
judges  selected  for  legal  kno^Yledge,  and  made  independent  of  Executive 
power.  Military  judges  are  not  so  selected,  and  so  far  from  being  inde- 
pendent are  absolutely  dependent  on  such  po^^-er.  To  pass  upon  the  lat- 
ter, it  provides  juries  as  being  not  likely  to  "partake  of  the  wishes  and 
opinions  of  the  Government."  But  if  your  function  is  only  to  act  as  aids 
to  the  President,  to  enable  him  to  exercise  his  function  of  punishment, 
and  as  he  is  under  no  obligation  by  any  law  to  call  for  such  aid,  he 
may  punish  upon  his  own  unassisted  judgment,  and  without  even  the 
form  of  a  trial.  In  conclusion,  then,  gentlemen,  I  submit  that  your  re- 
sponsibility, whatever  that  be,  for  error,  in  a  proceeding  like  this,  can 
find  no  protection  in  Presidential  authority.  Whatever  it  be,  it  grows 
out  of  the  laws,  and  may,  through  the  laws,  be  enforced.  I  suggested  in 
the  outset  of  these  remarks  that  that  responsibility  in  one  contingency 
may  be  momentous.  I  recur  to  it  again,  disclaiming,  as  I  did  at  first,  the 
wish  or  hope  that  it  would  cause  you  to  be  wanting  in  a  single  particular 
of  what  you  may  believe  to  be  your  duty,  but  to  obtain  your  best  and 
most  matured  judgment.  The  wish  and  hope  disclaimed  would  be  alike 
idle  and  discourteous ;  and  I  trust  the  Commission  will  do  me  the  justice 
to  believe  that  I  am  incapable  of  falling  into  either  fault. 

Responsibility  to  personal  danger  can  never  alarm  soldiers  who  have 
faced,  and  vrill  ever  be  willing  in  their  country's  defence  to  face  death  on 
the  battle-field.  But  there  is  a  responsibility  that  every  gentleman,  be  he 
soldier  or  citizen,  will  constantly  hold  before  him,  and  make  him  ponder — 
responsibility  to  the  Constitution  and  laws  of  his  country  and  an  intelli- 
gent public  opinion — and  prevent  his  doing  anything  knowingly  that  can 
justly  subject  him  to  the  censure  of  either.  I  have  said  that  your  respon- 
sibility is  great.  If  the  commission  under  which  you  act  is  void  and  con- 
fers no  authority,  whatever  you  may  do  may  involve  the  most  serious  per- 
sonal liability.  Cases  have  occurred  that  prove  this.  It  is  sufficient  to 
refer  to  one.  Joseph  Wall,  at  the  time  the  offence  charged  against  him 
Vv'as  committed,  was  Governor  and  commander  of  the  garrison  of  Goree, 
a  dependency  of  England,  in  Africa.  The  indictment  was  for  the  murder 
of  Benjamin  Armstrong,  and  the  trial  was  had  in  January,  1802,  before  a 
special  court,  consisting  of  Sir  Archibald  McDonald,  Chief  Baron  of  the 
Exchequer ;  Lawrence,  of  the  King's  Bench,  and  Rocke,  of  the  Common 
Pleas.    The  prosecution  was  conducted  by  Law,  then  Attorney  General, 


2i 

afterwards  Lord  Ellenborough.  The  crime  was  committed  in  It 82,  and 
under  a  military  order  of  the  accused,  and  the  sentence  of  a  regimental 
court-martial.  The  defence  relied  upon  was,  that  at  the  time  the  garrison 
was  in  a  state  of  mutiny,  and  that  the  deceased  took  a  prominent  part  in 
it ;  that,  because  of  the  mutiny,  the  order  for  the  court-martial  was  made, 
and  that  the  punishment  which  was  inflicted  and  said  to  have  caused  the 
death  was  under  its  sentence.  The  offence  was  purely  a  military  one,  and 
belonged  to  the  jurisdiction  of  a  military  court,  if  the  facts  relied  upon  by 
the  accused  were  true,  and  its  judgment  constituted  a  valid  defence.  The 
court,  however,  charged  the  jury,  that  if  they  found  that  there  was  no 
mutiny  to  justify  such  a  court-martial  or  its  sentence,  they  were  void  and 
furnished  no  defence  whatever.  The  jury  so  finding,  found  the  accused 
guilty,  and  he  was  soon  after  executed.  (28  St.  Tr.,  51,  IT 8.)  The  ap- 
plication  of  the  principle  of  this  case  to  the  question  I  have  considered  is 
obvious.  In  that  instance  want  of  jurisdiction  in  the  court-martial  was 
held  to  be  fatal  to  its  judgment  as  a  defence  for  the  death  that  ensued 
under  it.  In  this,  if  the  Commission  has  no  jurisdiction,  its  judgment  for 
the  same  reason  will  be  of  no  avail,  either  to  Judges,  Secretary  of  War 
or  President,  if  either  shall  be  called  to  a  responsibility  for  what  may  be 
done  under  it.  Again,  upon  the  point  of  jurisdiction,  I  beg  leave  to  add 
that  the  opinion  I  have  endeavored  to  maintain  is  believed  to  be  the 
almost  unanimous  opinion  of  the  profession,  and  certainly  is  of  every 
judge  or  court  v/ho  has  expressed  any. 

In  Maryland,  where  such  commissions  have  been  and  are  held,  the 
Judge  of  the  Criminal  Court  of  Baltimore  recently  made  it  a  matter  of 
special  charge  to  the  grand  jury.  Judge  Bond  told  them  :  '  It  has  come 
to  my  knowledge  that  here,  where  the  United  States  Court,  presided  over 
by  Chief  Justice  Chase,  has  always  been  unimpeded,  and  where  the 
Marshal  of  the  United  States,  appointed  by  the  President,  selects  the 
jurors,  irresponsible  and  unlawful  military  commissions  attempt  to  exercise 
criminal  jurisdiction  over  citizens  of  this  State,  not  in  the  military  or 
na.val  service  of  the  United  States,  nor  in  the  militia,  who  are  charged 
with  offences  either  not  known  to  the  law.  or  with  crimes  for  which  the 
mode  of  trial  and  punishment  are  provided  by  statute  in  the  courts  of  the 
land.  That  it  is  not  done  by  the  paramount  authority  of  the  United 
States,  your  attention  is  directed  to  article  5,  of  the  Constitution  of  the 
United  States,  which  says  :  '  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless  on  a  presentment  or  indict- 


29 


ment  of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia  when  in  actual  service  in  time  of  war  or  public  danger." 
Such  j^ersons  exercising  such  unlaivful  jurisdiciion  are  liable  to  in- 
dictment by  you,  as  well  as  responsible  in  civil  actions  to  the  parties.'' 
In  New  York,  Judge  Peckham,  of  the  Supreme  Court  of  that  State,  and 
speaking  for  the  whole  bench,  charged  the  grand  jury  as  follows  : 

"  The  Constitution  of  the  United  States,  Article  5,  of  the  Amendments, 
declares  that  '  no  person  shall  be  held  to  ansv/er  for  a  capital  or  otherwise 
infamous  crime,  unless  on  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia  when 
in  actual  service  in  time  of  war  or  pubhc  danger.' 

''Article  6  declares  that  'in  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial.' 

"Article  3,  section  2,  declares  that  'the  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury,'  &c. 

"  These  provisions  were  made  for  occasions  of  great  excitement,  no 
matter  from  what  cause,  when  passion  rather  than  reason  might  prevail. 

"  In  ordinary  times,  there  would  be  no  occasion  for  such  guards,  as 
there  would  be  no  disposition  to  depart  from  the  usual  and  established 
modes  of  trial. 

"A  great  crime  has  lately  been  committed  that  has  shocked  the  civilized 
world.  Every  right  minded  man  desires  the  punishment  of  the  criminals, 
but  he  desires  that  punishment  to  be  administered  according  to  law,  and 
through  the  judicial  tribunals  of  the  country.  No  star  chamber  court,  no 
secret  inquisition,  in  this  nineteenth  century,  can  ever  be  made  acceptable 
to  the  American  mind. 

"If  none  but  the  guilty  could  be  accused,  then  no  trial  could  be 
necessary — execution  should  follow  accusation. 

"  It  is  almost  as  necessary  that  the  public  should  have  undoubted  faith 
in  the  purity  of  criminal  justice,  as  it  is  that  justice  should  in  fact  be 
administered  with  integrity. 

"Grave  doubts,  to  say  the  least,  exist  in  the  minds  of  intelligent  men  as 
to  the  constitutional  right  of  the  recent  military  commissions  at  Washing- 
ton, to  sit  in  judgment  upon  the  persons  now  on  trial  for  their  lives  before 
that  tribunal.  Thoughtful  men  feel  aggrieved  that  such  a  commission 
should  be  established  in  this  free  country,  when  the  war  is  over,  and  when 
the  common  law  courts  are  open  and  accessible  to  administer  justice 
according  to  law,  without  fear  or  favor. 


80 


"What  remedy  exists  ?  None  whatever,  except  through  the  power  of 
public  sentiment. 

''As  citizens  of  this  free  country,  having  an  interest  in  its  prosperity 
and  good  name,  we  may,  as  I  desire  to  do,  in  all  courtesy  and  kindness, 
and  with  all  proper  respect,  express  our  disapprobation  of  this  course  in 
our  rulers  in  Washington. 

The  unanimity  with  which  the  leading  press  of  our  land  has  con- 
demned this  mode  of  trial,  ought  to  be  gratifying  to  every  patriot. 

"  Every  citizen  is  interested  in  the  preservation,  in  their  purity,  of  the 
institutions  of  his  country ;  and  you,  gentlemen",  may  make  such  present- 
ment on  this  subject,  if  any,  as  your  judgment  may  dictate." 

The  reputation  of  both  of  these  judges  is  v/eli  and  favorably  known,  and 
their  authority  is  entitled  to  the  greatest  deference. 

Even  in  France,  during  the  consulship  of  Napoleon,  the  institution  of  a 
military  commission  for  the  trial  of  the  Prince  Due  d'Enhien,  for  alleged 
conspiracy  against  his  life,  was,  to  the  irreparable  injury  of  his  reputation, 
ordered  by  Napoleon.  The  trial  was  had,  and  the  Prince  was  at  once 
convicted  and  executed.  It  brought  upon  Napoleon  the  condemnation 
of  the  world,  and  is  one  of  the  blackest  spots  in  his  character.  The  case 
of  the  Duke,  says  the  eminent  historian  of  the  Consulate  and  the  Empire, 
furnished  Napoleon  "  a  happy  opportunity  of  saving  his  glory  from  a 
stain,"  which  he  lost,  and  adds,  with  philosophic  truth,  that  it  was  "  a 
deplorable  consequence  of  violating  the  ordinary  forms  of  justice,''^  and 
further  adds,  "  to  defend  social  order  by  conforming  to  the  strict  rules 
and  forms  of  justice,  without  allowing  any  feeling  of  revenge  to  operate, 
is  the  great  lessen  to  be  drawn  from  these  tragical  events." — Thier^s 
History,  c^c,  4  vol.,  318-322. 

Upon  the  whole,  then,  I  think  I  shall  not  be  considered  obtrusive  if  I 
again  invoke  the  Court  to  weigh  well  all  that  I  have  thought  it  my  duty 
to  urge  upon  them.  I  feel  the  duty  to  be  upon  me  as  a  citizen  sworn  to 
do  what  I  can  to  preserve  the  Constitution  and  the  principles  on  which 
it  reposes.  As  counsel  of  one  of  the  parties,  I  should  esteem  myself  dis- 
honored, if  I  attempted  to  rescue  my  client  from  a  proper  trial  for  the 
offence  charged  against  her  by  denying  the  jurisdiction  of  the  Commission 
upon  grounds  that  I  did  not  conscientously  believe  to  be  sound.  And  in 
what  I  have  done,  I  have  not  more  had  in  view  the  defence  of  Mrs. 
Surratt,  than  of  the  Constitution  and  the  laws.  In  my  view,  in  this 
respect,  her  cause  is  the  cause  of  every  citizen.    And  let  it  not  be  sup- 


31 


posed  that  I  am  seeking  to  secure  impunity  to  anyone  who  may  have  been 
guilty  of  the  horrid  crimes  of  the  night  of  the  14th  of  Aprih  Over  these 
the  civil  courts  of  this  District  have  ample  jurisdiction,  and  will  faithfully 
exercise  it  if  the  cases  are  remitted  to  them  and  guilt  is  legally  established, 
and  will  surely  award  the  punishment  known  to  the  laws.  God  forbid 
that  such  crimes  should  go  unpunished  I  In  the  black  catalogue  of 
offences,  these  will  forever  be  esteemed  the  darkest  and  deepest  ever  com- 
mitted by  sinning  man.  And  in  common  with  the  civilized  world,  do  I 
wish  that  every  legal  punishment  may  be  legally  inflicted  upon  all  who 
participated  in  them. 

A  word  more,  gentlemen,  and  thanking  you  for  your  kind  attention,  I 
shall  have  done.  As  you  have  discovered,  I  have  not  remarked  on  the 
evidence  in  the  case  of  Mrs.  Surratt,  nor  is  it  my  purpose  ;  but  it  is  proper 
that  I  refer  to  her  case  in  particular  for  a  single  moment.  That  a  woman 
well  educated,  and  as  far  as  we  can  judge  from  all  her  past  life  as  we  have 
it  in  evidence,  a  devout  Christian,  ever  kind,  affectionate,  and  charitable, 
with  no  motive  disclosed  to  us  that  could  have  caused  a  total  change  in 
her  very  nature^  could  have  participated  in  the  crimes  in  question  it  is 
almost  impossible  to  believe.  Such  a  belief  can  only  be  forced  upon  a 
reasonable,  unsuspecting,  unprejudiced  mind  by  direct  and  uncontradicted 
evidence,  coming  from  pure  and  perfectly  unsuspected  sources.  Have  we 
these  ?  Is  the  evidence  uncontradicted?  Are  the  two  witnesses  Weich- 
mann  and  Lloyd,  pure  and  unsuspected  ?  Of  the  particulars  of  their  evi- 
dence I  say  nothing.  They  will  be  brought  before  you  by  my  associates, 
liut  this  conclusion  in  regard  to  these  witnesses  must  be  in  the  minds  of 
the  Court,  and  is  certainly  strongly  impressed  upon  my  own,  that  if  the 
facts  which  they  themselves  state  as  to  their  connection  and  iritimacy  with 
Booth  and  Payne  are  true,  their  knowledge  of  the  purpose  to  commit  the 
crimes,  and  their  participation  in  them,  is  much  more  satisfactorily  estab- 
lished than  the  alleged  knowledge  and  participation  of  Mrs.  Surratt.  As 
far,  gentlemen,  as  I  am  concerned,  her  case  is  now  in  your  hands. 

REYERDY  JOHXSON. 

June  16,  1865. 

As  associate  counsel  for  Mrs,  Mary  E.  Surratt,  we  concur  in  the  above. 

FREDERICK  A.  AIKEX, 
JOHN  W.  CLAMPITT. 


AN  ARGUMENT 

TO  ESTABLISH  THE  ILLEGALITY  OF 


I  N    T  H  E 

.  UNITED  STATES, 

And  Especially  of  the  One  Organized  for  the  Trial  of 
THE  Parties  Charged  with 

Conspiring  to  Assassinate  the  Late  President, 

j^nd  Otliers, 

PRESENTED    TO     THAT  COMMISSION, 

On  Monday f  the  19th  of  June,  IS  65, 

AXDPREPAREDBY 

REVERDT  JOHNSON, 

One  of  the  Counsel  of  Mrs.  Surratt. 


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